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First Military Commission Hearing Ends in Continuance for Defense

NAVAL BASE GUANTANAMO BAY, Cuba, Aug. 25, 2004  The first military commission hearing for an enemy combatant held here ended Aug. 24 with the presiding officer granting a continuance for the defense.

The Defense Department is trying four detainees in the first military tribunals held since World War II. Preliminary hearings in the cases are scheduled for this week.

In this first hearing, Navy Lt. Cmdr. Charlie Swift, the government-appointed attorney for Yemeni national Salim Ahmed Hamdan, challenged the appointment of five officials to the panel that will decide on his client's guilt or innocence.

Hamdan is accused of being a bodyguard for terrorist leader Osama bin Laden. He is charged with conspiracy to commit the offenses of attacking civilians and civilian objects, murder, destruction of property and terrorism.

Presiding officer Army Col. Peter Brownback, a former military judge who is in charge of procedural matters in the courtroom, granted Swift a continuance until after Appointing Authority John D. Altenburg Jr. rules on Swift's challenge to have the five officials removed for cause.

Hamdan, in flowing white traditional Islamic robes, a black and white checked blazer and leather sandals, and flanked by two American military police officers in camouflage uniforms, entered the courtroom at 10 a.m. with a broad smile on his face.

In a news conference after the proceedings, Swift explained that the day was one of very mixed emotions for his client, who has been in detention at Guantanamo Bay for nearly three years. "This was the most people he's seen in literally years," Swift said of Hamdan.

He also mentioned this was the first time Hamdan had worn clothes other than an orange prison jumpsuit for the same amount of time. Hamdan's family provided the clothing, Swift said.

A panel of five officers -- Brownback and four others who asked not to be named because of security concerns -- jointly decides on cases presented before the court. A sixth officer sits in the hearings as an alternate.

After a process known as voir dire, in which the prosecuting and defense attorneys can challenge the suitability of panel members, Swift questioned the impartiality, or at least the appearance of impartiality, of Brownback, three of the other panel members, and the alternate officer.

Of the three panel members Swift challenged, one had supervised a Marine reservist who was a civilian firefighter killed in the World Trade Center attacks. Another had coordinated logistics for the transfer of all detainees from Afghanistan to Guantanamo Bay. The third was an intelligence officer who admitted he was involved in the capture of enemy personnel in Afghanistan and Iraq.

He challenged Brownback's suitability on four counts:

Qualifications. Brownback is a retired military judge who volunteered to return to active duty. Swift questioned his current certification as a military judge advocate and the fact that he's not an active member of a state bar association.

Influence. Swift said he is concerned that Brownback, as the only attorney on the panel, might hold improper influence over the other members because of his expertise.

Contacts. Many of the contacts with the appointing authority that concerned Swift were made by an assistant of Brownback's. Still, Swift said, it's crucial to avoid even an appearance of unfairness.

Pre-formed opinions. Swift later said he had a tape from an earlier meeting in which Brownback allegedly questioned enemy combatants' right to a speedy trial. Brownback said he was referring to another matter, but he granted Swift's request to have the tape transcribed and entered into the record of his challenge.

Swift also challenged the alternate officer because that person admitted he had "strong emotions" about the Sept. 11 attacks and had a desire "to seek justice for those killed by terrorism." The officer also said he believed he may be perceived negatively for taking part in the military commissions and he had a "strong apprehension" that terrorist organizations might seek revenge against him or his family.

In each case, the prosecuting attorney, representing the government here, opposed Swift's challenge. In the press conference later, Swift said the opposition surprised him, since the government claims to want open and fair proceedings.

In a separate news conference after the hearing adjourned, Navy Lt. Susan McGarvey, a military attorney and spokeswoman for the Office of Military Commissions, said she was impressed with today's proceedings. She said it was a good chance for media to witness "the adversarial process in action."